Hwo v Dwyer (No. 2) - [2014] QCAT 705

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

HWO v Dwyer (No. 2) [2014] QCAT 705

PARTIES:	HWO (Applicant)
V
Darryl Dwyer (First Respondent)
Scott Paul Clarke (Second Respondent)

APPLICATION NUMBER:

NDR160-13 (Brisbane)

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

20 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Scott Paul Clarke, the registered proprietor of the lot at 94 Orchid Drive, Mount Cotton will arrange the following treatment of the Climbing Philodendron vine: pouring boiling water over the vine at sufficient intervals to contain the growth of the vine so that it does not breach and bridge the termite management system for the lot at 3 Flindersia Drive, Mount Cotton;

2. All works are to be at the cost of Scott Paul Clarke;

3. All works are to commence within 30 days of this order; and

4. Darryl Dwyer pays to HWO her costs of the Application fixed at $685.00 within 30 days of this Order.

CATCHWORDS:

TREE DISPUTE – whether serious injury or damage or likely to cause serious injury or damage – where trees removed since application – where vine removed since application – where no evidence of serious injury or damage – where no evidence of likelihood to cause serious injury or damage – where vine substantially interfered and is likely to substantially interfere – where duty to mitigate – where proposed herbicide treatment presented risk to health of applicant - where primary consideration is safety of a person – where non-chemical treatment appropriate to treat vine – whether original tree-keeper should pay costs of assessor report and filing fee – where original tree-keeper failed to engage with neighbour or process – whether unnecessary disadvantage

Neighbourhood Disputes (Dividing Fences and Trees) Act2011, sections 41, 42, 65, 66, 71, 72, 73, 74, 75
Queensland Civil and Administrative Tribunal Act 2009, sections 100,102 and 112

Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412

Urguhart v. Partington [2013] QCAT 133

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

What is this Application about?

Ms HWO has concerns about her neighbour’s palm trees and vines. On 16 July 2013, she applied to the Tribunal to remove them.
Both the trees and vine have since been removed. The independent Tree Assessor appointed by the Tribunal recommended implementing a herbicide application to kill future regrowth of the vine (Climbing Philodendron) until no further regrowth occurs.[1]
[1] Tree Assessment Report of Jeremy Young dated 14 October 2013 at paragraph 4.
Despite the trees and vine being removed and the Tree Assessor recommending maintenance of the vine to kill future regrowth, HWO is dissatisfied because:
The proposed agreement does not address the issue that I have no legal access for inspection of my external brickwall (sic) – required on a regular basis to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hwo v Dwyer (No. 2)

Details

AGLC: Hwo v Dwyer (No. 2) [2014] QCAT 705
Case: [2014] QCAT 705
Decision Date: 20 May 2014

CaseChat Overview and Summary

The case of Hwo v Dwyer (No. 2) involved the parties Hwo and Dwyer in a dispute concerning the removal of a vine from a property. The Vine was found to have substantially interfered with the property and was likely to cause further interference. The Vine was subsequently removed by the applicant, Hwo, after the removal of trees from the property. The primary issue before the court was whether the removal of the trees and Vine constituted serious injury or damage or was likely to cause such injury or damage. Additionally, the court had to determine whether the original tree-keeper should pay for the costs of an assessor's report and the filing fee.

The court found that there was no evidence of serious injury or damage caused by the removal of the trees and Vine. However, the Vine had substantially interfered and was likely to cause further interference. The court noted that the primary consideration was the safety of a person, and that a non-chemical treatment was appropriate to treat the Vine. The court also found that the original tree-keeper had failed to engage with the neighbour or process, which caused an unnecessary disadvantage. The court ordered that the applicant, Hwo, should arrange for the treatment of the Vine using boiling water. The order also stipulated that all works should be at the cost of the applicant and should commence within 30 days of the order. The court further ordered that Darryl Dwyer should pay Hwo's costs of the application, fixed at $685.00, within 30 days of the order.

In conclusion, the court found that the removal of the trees and Vine did not constitute serious injury or damage, but the Vine had substantially interfered with the property and was likely to cause further interference. The court ordered that the Vine should be treated using a non-chemical method, and that the applicant should bear the cost of the treatment. The court also found that the original tree-keeper should pay for the costs of the assessor's report and filing fee, as they had failed to engage with the neighbour or process, which caused an unnecessary disadvantage.

Orders

Orders of the court

2. All works are to be at the cost of Scott Paul Clarke;

3. All works are to commence within 30 days of this order; and

4. Darryl Dwyer pays to HWO her costs of the Application fixed at $685.00 within 30 days of this Order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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